The Boston Review welcomes both letters and short essays commenting on themes addressed in recent articles.
To the Editors:Congratulations on your fine special issue on "Money, Politics and Democracy." Ellen Miller's piece goes to the heart of the matter: while the logic of democracy is "one person-one vote," the logic of the market is "may the highest bidder win." When market logic invades the political sphere, money not only talks louder than citizens, it quickly comes to govern. We now live in a system that is at least as much plutocracy as democracy; the wealthy dominate and the poor are powerless.
Until now, the situation has seemed hopeless as people have looked at Buckley v. Valeo as our sorrowful and inescapable destiny. But the Supreme Court's reactionary equation of money and speech is finally coming under fire all over America, and Cass Sunstein's advocacy of a "New Deal for Speech" should play a notable role in undermining the "marketplace" metaphor in the political process. The consequence of unleashing private and corporate wealth in the political process is less speech, less diverse speech, much more apathy and a superficial democracy.
In constitutional terms, we need an alternative paradigm to replace our lingering attachment to the idea that money should be a constitutionally protected political language (which, by definition, only the affluent can learn to speak). The new paradigm, I suggest, is equality and equal protection. The question we need to ask is whether our method of private financing of election campaigns leaves the political process equally open to all citizens. Or have big money and incumbent self-subsidies become so dominant that they now form an effective barrier to meaningful political participation for all but the most affluent?
In an electoral sense, most incumbents are safely enclosed behind a high wall of public and private money which keeps political challengers and ordinary citizens at bay. While this financial fortress closes poor people out, it closes elected officials in, making their politics elitist, special interest-dominated, and hopelessly class-bound.
Is this situation just unfortunate or is it indeed unconstitutional? I cannot fully explore this question here, but I argue, along with my co-author John Bonifaz, in an upcoming issue of the Yale Law and Policy Review, that the current system of private financing of campaigns constitutes an unlawful barrier to full political participation for tens of millions of ordinary Americans who lack the means to participate in a critical part of the political process.
There is a surprisingly good precedent for such a claim. In 1971, a unanimous Supreme Court, in an important case called Bullock v. Carter, struck down on equal protection grounds a series of high filing fees which Texas required candidates in primary elections to pay their parties. Chief Justice Burger found that these fees chilled efforts by poorer candidates: "Unlike a filing-fee requirement that most candidates could be expected to fulfill from their own resources or at least through modest contributions, the very size of the fees imposed under the Texas system give it a patently exclusionary character. Many potential office seekers lacking both personal wealth and affluent backers are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they might be, and no matter how enthusiastic their popular support."
This "exclusionary mechanism" for screening out poorer candidates had a powerful effect on politics since voters were now "substantially limited in their choice of candidates." The reduction of political choice fell "more heavily on the less affluent segment of the community, whose favorites" were "unable to pay the large costs required by the Texas system." Meanwhile, the system gave "the affluent the power to place on the ballot their own names or the names of persons they favor."
But that is exactly what our current system does. The highest fee struck down in Texas was less than five percent of the $215,000 sum that it cost a challenger to defeat an unindicted incumbent in the cheapest upset of 1992. The average winner in a House race spends more than $400,000.
The money needed to run a serious campaign for Congress today poses a much greater obstacle and deterrent to non-affluent candidates than the Texas filing fee ever was. Of course, it could be argued that the Constitution only guarantees a place on the ballot, not a meaningful chance at election. But this argument was rejected in a line of authority known as the "white primary" cases, which culminated in the 1953 Supreme Court case of Terry v. Adams. In that case, the Court struck down the clever practice employed by a private political club in Texas of eliminating black electoral influence by pre-selecting and unifying behind a white candidate before the Democratic primary. Because the Jaybird-endorsed candidate almost always won, it did not matter to the Court that African-American citizens could still freely cast a vote in the primary and general elections. The Court found that a state could not permit private groups of citizens to exclude minorities from participation in "an integral part" of "the elective process that determines who shall rule and govern."
In 1953, the principal instrument of political exclusion was exclusionary political organization on racial grounds: the white primary. In 1993, the principle instrument of political exclusion is exclusionary political organization on economic grounds: the wealth primary. It is time for the Court to bring all citizens into the political process on equal terms and strike down the current private campaign finance system as an unconstitutional form of wealth discrimination in the political process.
We need all of the excellent reforms that Ralph Nader discusses, but it will be much easier to get them when the Congress and our state legislatures are no longer on the auction block. We need a massive popular movement to challenge the tyranny of money in American politics and government.
Jamin B. Raskin
Associate Professor of Law
The American University
To the Editors:We read with great interest the articles by Ellen Miller, Ralph Nader, and Cass Sunstein in your March-April forum on "Money and Politics." Last December, with sponsorship from the Center for a New Democracy, we polled 805 likely voters to explore popular views about campaign finance reform. This national survey was supplemented in January by discussions with four focus groups in Maine and Ohio. The groups were composed of Clinton and Perot voters, and labor union members. We thought your readers would be interested to know the chief findings of this polling.
1. The Mood. The electorate's sweeping call for change in 1992 stemmed in large part from disgust with gridlock and politics as usual in Washington. Voters clearly want to break that gridlock, and they see partisan bickering and special-interest politics at the core of the problem. At the same time, voters are cynical about the prospect of campaign finance reform and political reform. Indeed, 44% of the people believe that a package of political and campaign reforms passed by President Clinton and Congress "will not go far enough," compared to only nine percent who believe it will go too far. (Among Perot voters, 56% believe Clinton and Congress together "will not go far enough.")
2. A Winning Package. The good news for reformers is that there is a package that voters will support. Fully 72% of voters support extending presidential campaign finance to Congress and the Senate when we stipulate that the package includes limiting campaign spending and reducing individual and PAC contributions -- funded by a voluntary check-off and a new tax on lobbyists. A flat suggestion to extend Presidential campaign finance reform to Congress nets only 28%; when you add spending limits to the description, support bounces up to 40%. But the full description of reform -- extending Presidential campaign finance to Senate and Congress, limits on campaign spending, PAC
and individual contributions, funded by
a voluntary check-off and a new tax on lobbyists -- wins support from nearly three-quarters of the voting population.
3. Spending Limits. Voters do not know much about the financing of campaigns in general, and what information they have is often wrong. Only 16% of voters know that presidential, general election campaigns are financed by public funding with a check-off, down from 24% in our previous surveys.
In research conducted in the last cycle, Greenberg/Lake also found that voters do not know that the Supreme Court's decision in Buckley v. Valeo (1976) prohibits direct limits on campaign spending. Though it would be difficult, President Clinton and the advocacy community may be able to educate voters to the fact that voluntary public financing is the only constitutional means of limiting spending and PAC donations. In focus groups, we found when it is made clear to voters that public financing is the only legal way we have to insure that candidates will limit their campaign spending, voters will accept it.
Considering reforms individually, 86% of voters like the idea of spending limits; 29% like the idea a lot. (In contrast, only 68% support term limits!) Voters want overall spending limits because they believe campaigns cost too much and go on too long. They hope that limits might cut down on mudslinging and negative advertising. Most important, they like spending limits because they believe it will "level the playing field." Tapping into voters' desire to limit spending is critical to winning their support for reform.
Voters also like the idea of lowering the ceiling for PAC contributions from $5,000 to $1,000 (75% support this proposal, including 20% who strongly support it). Support for a more moderate limit of $2,500 is less intense (70%, 12% strong).
Although voters favor limits on individual contributions, particularly for wealthy individuals, they are somewhat hesitant to eliminate all substantial contributions. 59% support reducing the ceiling on individual contributions from $1000 to $500, but only 51% want to cut individual contributions to $100, having heard of the previous more modest proposal. Stated even more strongly, "banning all" contributions over $100 is opposed by 52% of the voters.
4. Public Funding. Initially, voters resist the concept of public financing of campaigns, which they assume will take money out of their pockets to pay for campaigns. Only 47% support partial public financing of campaigns, and 44% oppose it. They show more willingness, however, to accept public financing as a vehicle to limit special interests. 67% of voters support partial public financing of campaigns when it is accompanied by limitations on all other contributions, including those of PACs and private individuals. Similarly, three-fourths of voters still support the previously mentioned reform package, even when they hear it includes provisions for partial public financing through the public matching of small donor contributions. These higher levels of support can be built when it is made clear to voters where the financing comes from -- for example, from taxing lobbyists or from a five dollar voluntary tax check-off. In the absence of such clarification, they assume that "public" means them and their tax dollars.
Voters like the idea of using public funds to match small contributions (54% support this proposal, 34% oppose it), but again, they prefer not to pay for campaign finance reform themselves. Voters also respond more enthusiastically to partial than full public financing of campaigns. Even so, voters split 45% to 46% on packages of contribution limits that they previously liked, once they heard the funding would cost them $10 per year. Voters greatly prefer voluntary sources for the funding and want to have the money come from pockets other than their own. In sum, voters are most willing to consider public financing of campaigns when presented as a means of limiting the influence of special interest groups and overall spending, and when not paid for by general tax dollars.
5. A Winning Message. The most popular argument for campaign finance reform, including public financing, is that this represents one of the few serious assaults on special interests and politics as usual. The most convincing arguments for campaign finance reform pitch the package as a means of taking the country's future away from special interests and giving it back to average people (68% very convincing), of giving challengers a chance (71%), and of making politics more open to outsiders (68%). Those voters who decide to support the extension of presidential financing to other campaigns during the survey are particularly responsive to the message that this reform will allow government to focus on the needs of the country at large, not the special interests. Similarly, Perot voters are especially attracted to the idea of giving outsider and challenger candidates a chance and diminishing the power of special interests. These arguments rest on strong values -- democracy, being for the average people, and being against the powerful -- values which carry real weight.
In short: supporters would make a mistake by defining campaign finance reform too narrowly. The public would be very receptive to framing it as part of a broader political reform and ethics effort that will finally produce change, "clean up Washington," and put people first.
Celinda Lake and Steve Cobble